Dorman Fred Talbot, Jr. v. Louis E. Nelson, Warden, San Quentin Prison, (Lawrence E. Wilson, Former Appellee.)

390 F.2d 801 Dorman Fred TALBOT, Jr., Appellant, v. Louis E. NELSON, Warden, San Quentin Prison, Appellee. (Lawrence E. Wilson, former appellee.) No. 21631. United States Court of Appeals Ninth Circuit. December 27, 1967. As Amended January 17, 1968. Rehearing Denied January 24, 1968. Patrick J. Sampson (argued), Claremont, Cal., Jerome B. Falk, San Francisco, Cal., for appellant. Thomas C. Lynch, Atty. Gen., Edward P. O'Brien (argued), Deputy Atty. Gen., George R. Nock, Deputy Atty. Gen., San Francisco, Cal., for appellee. Before CHAMBERS, JERTBERG and ELY, Circuit Judges. CHAMBERS, Circuit Judge: 1 On March 12, 1965, Talbot brutally murdered Michael Bartholomew by hitting him with a wrench, which fractured his skull, and by stabbing him with a large knife. Bartholomew was just out of the military service with separation money in cash. The motive was to get the cash. 2 In due course, a Santa Barbara County state jury convicted Talbot of first degree murder and sentenced him to death. The California Supreme Court affirmed. People v. Talbot, 64 Cal.2d 691 , 51 Cal. Rptr. 417 , 414 P.2d 633 . Execution dates have been set, each postponed by subsequent legal proceedings. 3 Twice…

On March 12, 1965, Talbot brutally murdered Michael Bartholomew by hitting him with a wrench, which fractured his skull, and by stabbing him with a large knife. Bartholomew was just out of the military service with separation money in cash. The motive was to get the cash.

In due course, a Santa Barbara County state jury convicted Talbot of first degree murder and sentenced him to death. The California Supreme Court affirmed. People v. Talbot, 64 Cal.2d 691 , 51 Cal. Rptr. 417 , 414 P.2d 633 . Execution dates have been set, each postponed by subsequent legal proceedings.

Twice petitions for certiorari have been denied by the Supreme Court of the United States. Talbot v. People of the State of California, January 9, 1967, 385 U.S. 1015 , 87 S.Ct. 729 , and June 12, 1967, Talbot v. People of State of California, 388 U.S. 923 , 87 S.Ct. 2141 . The first petition was sought from the California Supreme Court decision affirming the conviction and the second was sought after the California Supreme Court on February 9, 1967, denied a petition for writ of habeas corpus.

On February 14, 1967, Talbot filed a petition for a writ of habeas corpus in the United States District Court for the…

(concurring):

Upon the basis of the record before us, I must agree with the result reached in the opinion authored by my Brother Chambers. I do so, however, in the expectation that our opinion does not finally adjudicate one substantial contention which is to be reviewed by the Supreme *804 Court of California and other contentions which, it is expected, will be presented to the federal courts in the light of an enlarged record.

Oral argument in Talbot’s present appeal was presented to us on August 21, 1967. Thereafter, on August 25, 1967, the Court of Appeal of the State of California issued its opinion in People v. Aubrey, 253 Cal.App.2d 1009 , 61 Cal. Rptr. 772 (1967), hearing denied, Cal.Sup.Ct., Oct. 19,1967. There it was held that Aubrey was improperly convicted of first degree murder because of the trial court’s failure to advise the jury, sum sponte, “that a deliberate and unprovoked homicide may be manslaughter.” The reversal was based on the opinion of the California Supreme Court in People v. Conley, 64 Cal.2d 310 , 49 Cal.Rptr. 815 , 411 P.2d 911 (1966). Since Aubrey’s conviction was invalid, the California courts should give serious consideration to Talbot’s…